HEARING OFFICER'S MEMORANDUM ON THE RESPONDENT'S MOTION TO DISMISS

Transcription

1 BEFORE THE POLICE BOARD OF THE CITY OF CHICAGO IN THE MATTER OF CHARGES FILED AGAINST ) POLICE OFFICER MARIAM HAMAD ) No. 07 PB 2673 STAR No , DEPARTMENT OF POLICE CITY OF CHICAGO, ) (CR No ) RESPONDENT HEARING OFFICER'S MEMORANDUM ON THE RESPONDENT'S MOTION TO DISMISS This case arises out of charges filed with the Police Board of the City of Chicago by the Superintendent of Police against Police Officer Mariam Hamad, Star No , on December 18, 2007, alleging that Officer Hamad violated Rule 1 of the Rules of Conduct of the Chicago Police Department in that on May 15, 2000, she signed the name of John Finnigan, deceased, on an application for Duplicate Nevada Certificate of Title, and that on March 28, 2000, she signed the name of John Finnigan, deceased, on an Application for Vehicle Title with the Illinois Secretary of State. The Superintendent contends that Rule 1, prohibiting violation of a law or ordinance, was violated in that Officer Hamad's conduct was forgery under 720 ILCS 5/17-3(a)(1) and/or (a)(2). The Department also contends that the foregoing conduct violates Rule 2 in impeding the Department's efforts to achieve its policy and goals and/or bringing discredit on the Department. Officer Hamad has moved for the dismissal of this case because: 1) the charges are barred by the statute of limitations imposed by Section 6.1(D) of the Agreement between the Fraternal Order of Police Chicago Lodge 7 and the City of Chicago; 2) the charges are barred by the doctrine of res judicata or collateral estoppel since the present action arises out of the same

2 Police Board Case No. 07 PB 2673 Police Officer Mariam Hamad Page 2 events and claims that were part of the charges brought previously by the Superintendent against Officer Hamad in Police Board Case No. 05 PB 2579, decided after five days of hearing in 2006; and 3) it is inequitable as the City failed to disclose the tortured history of Police Officer Jerome Finnigan, who was a witness upon whom the Superintendent relied in the 2006 hearing. Officer Hamad's first and third arguments for dismissal can be easily decided. Neither has merit. Section 6.1(D) of the FOP Agreement provides that no complaint or allegation shall be brought on the basis of events which occurred more than five years prior to the date of the charges, unless the Superintendent specifically authorizes such charges in writing. The events at issue in the present December 2007 charges occurred in The Superintendent, however, has provided the October 24, 2006, memo of Assistant Deputy Superintendent Debra Kirby of the Internal Affairs Division to Superintendent Philip J. Cline, which requested authorization to proceed against Officer Hamad pursuant to Section 6.1(D), since the events were more than five years old. Superintendent Cline provided his written approval to initiate the investigation (Ex. 6, attached hereto). Thus, the new charges are not barred by Section 6.1(D) of the FOP Agreement since the Superintendent did authorize such charges in writing. Officer Hamad's equitable argument for dismissal is not supported by any cited legal authority. In any event, as the Superintendent argued, Officer Finnigan's testimony in the 2006 hearing had nothing to do with the misconduct that Officer Finnigan is separately alleged to have engaged in. Moreover, since the conduct upon which Officer Hamad was found guilty of in her prior hearing arose from actions which she admitted to have taken, the effect of failing to disclose Officer Finnigan's actions at issue in separate proceedings cannot be viewed as prejudicial. No facts or law, thus, support dismissal of the current charges against Officer

3 Police Board Case No. 07 PB 2673 Police Officer Mariam Hamad Page 3 Hamad on this ground. Officer Hamad's res judicata argument presents a more persuasive basis for dismissal.' On October 4, 2005, the Superintendent filed charges with the Police Board against Officer Hamad that included the allegations that from May 26, 2000, through April 19, 2001, she violated 625 ILCS 5/4-104(a) by possessing without authority a certificate of title for a 1986 Ford Taurus belonging to deceased John Finnigan, and on or about April 19, 2001, she violated 625 ILCS 5/3-703 by displaying in this car, which was in her possession, a temporary registration permit which was not properly issued and/or was otherwise used in an unlawful manner. The Police Board found her guilty of the foregoing allegations on July 20, Officer Hamad's current motion to dismiss the December 2007 charges against her are based on the contention that the new charges arise from the same claims that served as the basis for her conviction in July 2006, and are thus barred by res judicata. In support of this argument, Officer Hamad relies upon LaSalle Bank v. Village of Bull Valley, 355 Ill.App.3d 629 (2n d Dist. 2005). Bull Valley establishes that: res judicata serves as a bar against prosecution of a second action between the same parties upon the same claim or demand, it is conclusive not only as to every matter that was offered to sustain or defeat the claim, but as to any matter that might have been offered for that purpose. Id., at 635. While the Superintendent argues that the claims from the first prosecution and the While Officer Hamad argues that res judicata or collateral estoppel apply here, only the doctrine of true res judicata is applicable. As a technical matter, res judicata encompasses both what is termed "true res judicata" and collateral estoppel. "True res judicata" is the doctrine of "claim preclusion," which Officer Hamad seeks to invoke in this case. Collateral estoppel is a related doctrine often referred to as "issue preclusion," prohibiting re-litigation of a material question decided in a related case. Hayes v. State Teachers Certification Bd., 359 Ill.App.3d 1153, (5'h Dist. 2005). Res judicata bars 'all matters that were offered to sustain or defeat the claim in the first action, as well as all matters that could have been offered for that purpose." Id., at 1161, quoting Arvia v. Madigan, 209 I11.2d 520, 533 (2004).

4 Police Board Case No. 07 PB 2673 Police Officer Mariam Hamad Page 4 second are different, i.e., the first prosecution was for unlawful possession of the car title and registration permit while the second is for forgery in obtaining the car title and registration permit, the unlawful possession in the first prosecution was predicated on the forgery used in obtaining the title and permit. As Officer Hamad notes, the documents used by the Superintendent to establish the forgery in the current charge were offered as exhibits in the prior prosecution, Superintendent Ex. 19 (application for duplicate Nevada certificate of title) and Joint Ex. 8 (also Superintendent Ex. 20) (Illinois application for vehicle title). More to the point, the Superintendent's attorney in closing argument in the 2006 hearing specifically said Officer Hamad's forgery was the unlawful conduct leading to possession of the title documents: But the promissory note has nothing to do with whether she forged and notarized a document after forging a signature. I mean, that's what she did here, Mr. Johnson. This is illegal.... A police officer who signs a deceased person's name and dates it a year after he dies doesn't know she is doing something wrong? This is an illegal act, and she knew it when she did it.... Instead, she submitted a document with a forged signature on it for someone who had been deceased for a year to try and get the title.... This is forgery. I mean, this is a plain act of forgery. This is an illegal act, and she did this in order to get this car that she so desperately wanted or in order to get the title to a car that she so desperately wanted.... So I think this is pretty clear evidence that she possessed the title without authority. They wouldn't have sent that to that address if they didn't have an application signed by the owner, who was John Finnigan. So they looked at this. They didn't know he was dead for a year. This is how she got the title. So did she possess it without authority? Absolutely. That's what this shows. June 22, 2006, Hamad hearing transcript, at pp , attached hereto. As noted by the Superintendent in his brief, the bar of res judicata "extends to the claims that were actually decided in the first action, as well as any matters that could have been decided in that suit." Superintendent Br. at 14, citing Bagnola v. SmithKline Beecham Clinical Lab., 333 Ill.App.3d 711, 717 (1St Dist. 2002). The Superintendent concedes that administrative

5 Police Board Case No. 07 PB 2673 Police Officer Mariam Hamad Page 5 proceedings where an agency is acting in a judicial capacity are accorded res judicata effect. City Br. at 15. There is no dispute that a final judgment exists in Officer Hamad's first case, as neither side appealed. The rationale behind res judicata is to provide finality and to prevent the prolonged piecemeal litigation of cases which is a waste of judicial resources. Haves, 359 Ill.App.3d at That rationale has particular application here where the city now seeks to re-raise a claim that was a part of the prior prosecution of Officer Hamad.' For the foregoing reasons, Officer Hamad's motion to dismiss should be granted. Resp r }ectfull submitted, Thomas E. Johnson Hearing Officer 2 Although the administrative proceedings before the Board are clearly not criminal prosecutions, the rationale behind the compulsory joinder rule for criminal prosecutions provides additional support for the dismissal of the current charges against Officer Hamad. The underlying charges against Officer Hamad in the 2005 and 2007 claims at issue here are predicated on criminal violations of Illinois law. 625 ILCS 5/4-104(a) and 625 ILCS 5/3-703 in the 2005 charge and 720 ILCS 5/17-3(a)(1) and/or (a)(2) in the 2007 charge. In People v. Davis, 373 Ill.App.3d 351, 355 (1' Dist. 2007), the court noted the compulsory joinder provision of the Criminal Code which states in relevant part, "[i]f the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution..." The court further noted: The supreme court also noted that in enacting the compulsory joinder provision, the legislature attempted to alleviate the fundamental unfairness that results when the State holds repeated trials for the same illegal conduct, a practice which had troubled the conscience of the courts and the legislature. [citation omitted] The supreme court continued by stating that 'the fact that multiple offenses arise from distinct, but related, acts in the course of single incident is irrelevant for purposes of compulsory joinder.' Id at 356.

6 Police Board Case No. 07 PB 2673 Police Officer Mariam Hamad Page 6 ORDER The Police Board of the City of Chicago has read and reviewed the Respondent's motion to dismiss, the Superintendent's response, the certified transcription of the hearing on the motion held on January 29, IT IS HEREBY ORDERED that, for the reasons set forth above in the Hearing Officer's memorandum, the Respondent's motion to dismiss the charges in Police Board Case No. 07 PB 2673 is granted, and that the Respondent, Police Officer Mariam Hamad, Star No , be and hereby is restored to her position as a police officer, and to the services of the City of Chicago, with all rights and benefits, effective December 19, DATED AT CHICAGO, COUNTY OF COOK, STATE OF ILLINOIS, THIS 21' DAY OF FEBRUARY, Attested by: 71i/V 67/1-A-6' Executive Director Police Board

7 Police Board Case No. 07 PB 2673 Police Officer Mariam Hamad Page 7 DISSENT The following members of the Board hereby dissent from the order issued by the majority of the Board. RECEIVED A COPY OF THE FOREGOING COMMUNICATION THIS D OF g6, 2008.

8 Office of the Superintendent 24 October 204 Internal Affairs Division TO: Philip J. Cline Superintendent FROM: Debra Kirby Assistant Deputy Superintendent Internal Affairs Division SUBJECT: Authorization to Initiate CR Investigation Pursuant to Fraternal Order of Police Contract Article 6.1 D I am seeking approval to initiate a CR investigation. While at Police Board Hearing # regarding CR #270735, P.O. Mariam Hamad #10603 admitted that she signed her deceased boyfriend's name to obtain a duplicate Nevada Certificate of Title for his vehicle. Additionally, she herself notarized that document. These allegations were not originally addressed in CR # due to an inability to obtain a copy of the Nevada Certificate of Title. In light of the seriousness of the charges, I am requesting authorization to initiate a complaint register investigation in this matter. As the allegations are more than five years old, the investigation may not proceed unless authorized by the Superintendent. Debra irby Assistan epu y Superintendent Internal Affairs Division Approved: Philip. Cline Superintendent DK/baj C:\MyFiles\Misc\Reguest to Initiate CR Investigation - Hamad.wpd

9 BEFORE THE POLICE BOARD OF THE CITY OF CHICAGO 423 IN THE MATTER OF CHARGES FILED AGAINST P. 0. MARIAM HAMAD, ) No Respondent. 30 North LaSalle Street 0 RIGIN AL Suite 1220 Chicago, Illinois Thursday, June 22, :40 a.m. PRESENT: Mr. Thomas Johnson, Hearing Officer APPEARANCES: Ms. Kerry Jewell, Assistant Corporation Counsel On behalf of the Superintendent; Mr. Kim Kardas, ALSO PRESENT: On behalf of the Respondent. Mr. Max Caproni Mr. Terry Kupperman, Videographer REPORTED BY: Joann M. Klawitter, C.S.R. No WICHMANN-KLAWITTER REPORTING, LTD. CHICAGO, /

10 Page knows they are doing something wrong. But aside from that fact, if you compare the signature to what's on that promissory note, it's very clear that either she signed the promissory note as well, or she was trying very carefully to imitate John Finnegan's signature. So she knew very well what she was doing when she signed John Finnegan's name on this document, notarized it, and sent it to the Nevada DMV. HEARING OFFICER JOHNSON: What about her claim that the car was collateral under the note. MS. JEWELL: I think that this goes back to -- her claim that the car was collateral on the note goes back to the issue of -- okay. Let me -- I think we have covered the fact that she didn't have title. She didn't own the vehicle. She was in possession of a stolen vehicle, and she had no legal right to it. We have gone over that a moment ago. But the promissory note has nothing to do with whether she forged and notarized a document after forging a signature. I mean, that's what she did here, Mr. Johnson. This is illegal. HEARING OFFICER JOHNSON: I understand that. MS. JEWELL: I'm sure that we all know that, WICHMANN-KLAVVITTER REPORTING, LTD. CHICAGO, /

11 Page sitting here. And this is a police officer. So for -- Officer Hamad claimed to be pretty unaware. She seems like a fairly intelligent person to me, and I think that that came across in her testimony. She has some -- she has several college degrees. She claimed to not really know -- be aware of what was going on in several different instances today, and it just wasn't believable. This is a primary example. I mean, come on. A police officer who signs a deceased person's name and dates it a year after he dies doesn't know she is doing something wrong? This is an illegal act, and she knew it was when she did it. So whether or not she had a promissory note -- again, that promissory note, she never took any legal action to try to act on that promissory note to try to obtain title to the car. Instead, she submitted a document with a forged signature on it for someone who had been deceased for a year to try to get the title. took. This is how she -- this is the action she WICHMANN-KLAWITTER REPORTING, LTD. CHICAGO, /

12 Page HEARING OFFICER JOHNSON: I agree with you that the Superintendent's 19 is problematic, but I just am concerned that -- I mean, this car is -- at the time all this is going on, at the time they retrieve it, it's thirteen, fourteen, fifteen years old. MS. JEWELL: I'm sure we are all sitting here wondering why -- HEARING OFFICER JOHNSON: So the idea of either opening a probate estate or initiating some litigation in the Circuit Court to determine ownership, it just -- I mean, that doesn't really happen. MS. JEWELL: Mr. Johnson, we can't take the law into our own hands, can we? I mean, you know we can't. You have to follow these legal procedures. Whether it would have been practical or made sense to do that for a car that Mariam Hamad is claiming today was worth $300? No, probably not. I mean, probably it would have made more sense just to give it back to the family and avoid any kind of legal proceeding. But obviously there was -- there's some bad feelings between these parties; there is no question about that. WICHMANN-KLAWITTER REPORTING, LTD. CHICAGO, /

13 Page And I think it's pretty clear that this car was -- kind became a pawn in those bad feelings. that. HEARING OFFICER JOHNSON: Right. I agree with MS. JEWELL: So her reasons for keeping the car -- she claims it's the last thing she had of her fiance. I don't know that a car is something someone would keep as a sentimental reminder. I'm sure there was something else he left at her apartment. I tend to think that it was more a -- it was more a reflection of the bad feelings she had for the Finnegans, just as they clearly had bad feelings for her. I mean, I don't think it's -- it's understandable that there would be bitter feelings between these people after that tragic event that occurred. But she is a police officer. She doesn't decide what -- she doesn't take the law into her own hands. She knows what the laws are. This is forgery. I mean, this is a plain act of forgery. This is an illegal act, and she did this in order to get this car that she so desperately wanted -- or in order to get the title to a car that she so desperately wanted. WICHMANN-KLAWITTER REPORTING, LTD. CHICAGO, /

14 Page HEARING OFFICER JOHNSON: Is she charged with -- I'm just looking at the charges. Is she charged with forging it. MR. KARDAS: No. MS. JEWELL: She is charged with -- HEARING OFFICER JOHNSON: Being in possession -- MS. JEWELL: I don't think Mr. Kardas -- he will get a chance to make this argument. She is charged with possessing without authority a certificate of title. Well, this is how she got the title. HEARING OFFICER JOHNSON: I see. MS. JEWELL: So I think this is pretty clear evidence that she possessed the title without authority. They wouldn't have sent that to that address if they didn't have an application signed by the owner, who was John Finnegan. So they looked at this. They didn't know he was dead for a year. This is how she got the title. So did she possess it without authority? Absolutely. That's what this shows. HEARING OFFICER JOHNSON: Wouldn't she have wanted to get it in her name, though? I mean, that would be -- if she was WICHMANN-KLAWITTER REPORTING, LTD. CHICAGO, /